On February 5th,Daniel Wade Moore,after ten years, was cleared of all charges in the murder of Karen Tipton by the same judge who once opted to send him to his death.The judge specifically cited the deceitful conduct of Prosecutor Don Valeska as among the primary reasons for not trying Moore a third time. A second jury had deadlocked 8-4 for acquittal.More recently members of the first jury have revealed that they also were deadlocked 8-4 for acquittal but were pressured by a vehement minority into convicting.They join in congratullating Daniel on his narrow escape: SATURDAY, FEBRUARY 5, 2009

Judge Glenn Thompson, saying prosecutors and police defied his orders to share evidence, freed the man he once sentenced to death in the murder of Karen Tipton.

DAILY Photo by Dan HenryDaniel Wade Moore, center, at the Hanceville Police Department with his stepfather, Gordon Byrd, right. Daniel Wade Moore walked out of the Morgan County Jail on Friday evening, clear of capital murder charges in Tipton's March 12, 1999, stabbing death at her home on Chapel Hill Road Southwest in Decatur.

Unless the state can successfully appeal Friday's ruling, Moore will not stand trial again.

But Moore was not free to go right away. From Decatur, he was taken to the Hanceville City Jail to face a misdemeanor charge from 1999.

Hanceville released him about 7 p.m. after his family paid a $355 fine for a worthless check, according to his attorney, Sherman Powell Jr.

Thompson, who presided over Moore's trial in Morgan County Circuit Court, said another trial would place him in "double jeopardy."

A jury convicted Moore in November 2002 of capital murder, and Thompson sentenced him to death. But he later overturned the conviction and sentence, granting Moore a new trial. Friday's ruling is in response to a year-old motion to dismiss filed by Powell and co-counsel Catherine Halbrooks.

The ruling

"The double jeopardy clause (of the U.S. Constitution) protects a criminal defendant's interest in a single, fair adjudication of his guilt or innocence," Thompson wrote. "When the lack of fairness is intentionally caused by the government's overreaching and misconduct, the defendant is entitled to the protections of the constitutions of the United States and the state of Alabama. . . .

"The prosecution had its opportunity to place Daniel Wade Moore on trial, and they squandered that right."

Thompson said Valeska and Pettey denied the existence of evidence, including FBI documents, that might have cleared Moore — evidence to which the defense was entitled.

Thompson said when he questioned Valeska about an FBI report during a hearing in October 2002, he stated, "There ain't no such thing as an FBI report."

"All of the material in question here passed through the hands of the investigators for the Decatur Police Department or the Assistant Attorney General Don Valeska and should have been provided to the defense as ordered by this court," Thompson continued.

Thompson also mentioned statements from people whom police and prosecutors questioned.

He said DNA evidence did not rule out other potential suspects. "In fact, the trial of the defendant was based almost entirely on circumstantial evidence. There is no direct evidence linking the defendant to the scene of the crime."

Chief backs investigation

Decatur Police Chief Joel Gilliam said he was not aware of the judge's ruling, but stood behind the investigation.

"It was before the court, and we disposed of the case," Gilliam said. ". . . We feel our investigation was based on the evidence. It was up to the court and the district attorney to take it from there."

Gilliam said it would be up to the state to reopen the case.

A spokeswoman for the attorney general's office said no one was available for comment.

Powell said the state could file a petition with the state Court of Criminal Appeals claiming that the judge made a mistake in his ruling and ask for its review.

Moore, who has been in jail for 4? years for Tipton's death, appeared to be happy to leave the county jail Friday.

"I'm glad this is over. The truth is finally out, so it's over with now," Moore told reporters as he got into a Hanceville police vehicle.

Powell said he's elated about Moore's freedom and he knew the judge would make the right decision.

"It's what we said all along: If we had the evidence that was withheld, we would've gotten an acquittal at trial," Powell said. "A lot of work and research went into the judge's ruling. It's something you couldn't do in a jury. I think justice has been done."

Moore's mother, Virginia Byrd, his stepfather, Gordon Byrd, and other relatives took him out to eat after his release from jail in Hanceville.

"This was so sudden that we didn't have anything planned," Virginia Byrd said.

Attempts to reach the victim's husband, Dr. David Tipton, were unsuccessful. An acquaintance of the family said the psychiatrist and his daughters have moved to another state.

SC: Unfortunately(see post below),Daniel is not the only victim of Valeska's overzealous prosecutions.I fear we shall have occasion ( and perhaps more than once) to return to this reprehensible attorney's activities (I trust that Alabama didn't also utilize his abilities in the Tommy Arthur Case.)

For those who missed this thread on the old blog(sigh!);here is a reprisal: A deadlocked jury today in the murder retrial of Daniel Wade Moore (An unofficial poll by the town paper shows 77% of the locals want the case thrown out) has (yet again )cast further lurid light on the thirty year resistable rise of Alabama Assistant Attorney General Don Valeska. Harsh critiques of Valeska's work have been coming out of Appelate Courts since 1978,but so far it has been(at county level)the judges that have thre courage to stand up to Valeska who go down. Take the current Daniel Moore case.Judge Glen Thompson found himself so inflamed by Valeska's presentation at the first trial that he overrode the jury's recommendation for mercy and gave Moore a death sentence.Judge Thompson's fury can be imagined when he found Valeska had lied to both the court and the jury concerning near a dozen pieces of exculpatory evidence which he was(as is his wont) concealing from the defense. When the Judge,irrespective of any embarrassment he might suffer ,had the courage to overturn his previous erroneous verdict, Valeska not only refused to remove himself as prosecutor but demanded the appelate court remove the Judge. Which it accordingly did,while allowing Valeska to continue on his long,merry, path of witness tampering,intimidation and suppression of documents. This case is particularly outrageous as there are many apparent reasons for believing that Valeska has (twice to date)vouched for the least improbable suspect as a State's witness and has,whenever possible, concealed evidence unfavorable to this individual throughout eight years of investigation.(I am not prejudging guilt but, graned that Moore was logically twice triable on the available evidence, the other prime suspect could equally well be tried on a different interpretation of that same evidence.) Valeska is at this game since 1972 and,as noted above,has been receiving harsh reprimendssince 1978 without any effect whatsoever.In 1997 when he and other Alabama prosecutors brought a bogus prosecution against Tieco Inc. at the instigation of a rival business firm,Judge James Garrett(Jefferson County,Alabama, Circuit Court) found ,"The misconduct[of the prosecutors] in this case far surpasses in both extensiveness and measure the totality of any prosecutorial misconduct ever previously presented or witnessed by this court." In 1999 a federal jury found that the Tieco prosecution was "a civil conspiracy with the office of the Attorney General of Alabama to unlawfully use the criminal process against defendant Tieco." Nevertheless Alabama did not see fit to censure its Attorney General nor,certainly,Assistant Attorney General Valeska,who has served the desires of six successive masters as faithfully as Tallyrand served five successive governments of France. In 1990,some brave souls(whom I have been unable to identify) did institute a disciplinary proceeding againt Valeska before the State Bar;but when Valeska immediately counter-sued the Bar the prosecution was quickly dropped without a hearing. The site below lists six additional cases since 1985(three of them involving death sentences) where Pulaski has allegedly indulged in equally barbarous behavior to obtain convictions.It is impossible for the present writer to verify all this on the basis currently available on the Web,however,we can certainly say that the joint murder convictions which Valeska obtained against Eddie Hunt and Grady Gibson in the later eighties give every indication of being as rotten and malignant a prosecution as Nifong launched in Durham.Gibson is still incarcerated and it is not impossible that further affirmative action can be lauched on his behalf. His case is certainly deserves the attention of any reader at this site. On the larger issue of defanging Valeska and giving him the Nifong treatment,we are along way off.Still,for the first time in his career,he is facing a grass roots rebellion in the Moore case.The people are standing by their own Judge and are clearly saying(at least for the day) "Of two possible alternative murderers,you, Valeska have chosen to prosecute the wrong man,squander our meagre funds, and hold our community in a state of perpetual turmoil for eight long years!" Will Valeska,for the first time ever, quietly fold his tent and slink back to the State House?Or will his pride,like Nifong's, drive him to yet another Moore prosecution in the face of popular wrath.If so,he may,just possibly,at last face a Waterloo[Well,at least he's a step clser to it this February 20th,2009].

This is from an Alamama legal site shortly after the reversal. But Valeska is still with us! Oops.So, Would This Count As Desecrating The Flag? »“A Minister of Justice”That is how Alabama’s Rules of Professional Conduct describe the office of prosecutor. Here is another high minded description:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Troy King succinctly states:

Prosecutors do not want someone held responsible for the crime; they want the criminal held responsible for the crime.

Now let us turn to the recently decided case State of Alabama v. Moore. (No link, because Alabama decisions are not available on the web, but if you have Westlaw access, the cite is 2006 WL 2035664). In that case, the following occured:

During the discovery phase of this trial, counsel for the Defendant made repeated requests for copies of statements and other documents in the possession of agents from the Federal Bureau of Investigation. The Court ordered the prosecutor and the investigators to provide the Defendant’s attorney with copies of all documents in their possession of whatever kind relating to the murder of Karen Croft Tipton. Repeatedly, Investigator Mike Pettey and Prosecutors, Don Valeska and William Dill, denied the very existence of any reports or documents prepared or generated by agents from the Federal Bureau of Investigation. The Court believed those representations made by the prosecution and took no further action to require the prosecution to produce the requested documents. This was done over the strenuous objections of counsel for the Defendant.

After the Defendant was tried and convicted, Don Valeska produced to the Court a copy of a five page document that was faxed to him from the Federal Bureau of Investigation. The Court then learned that Mr. Valeska had actual knowledge of this document prior to his fervent denial that any such documents or reports existed. . . .

Investigator Mike Pettey told Don Valeska prior to the trial of the case that he had sent questionnaires to various people connected to the case, had them fill out the questionnaires; and sent the information back to the Federal Bureau of Investigation. None of these materials were ever provided to the Defendant. Mr. Valeska did nothing prior to the commencement of the trial on November 4, 2002, to get a copy of this information from the Federal Bureau of Investigation or furnish it to the defense or inform the Court that he had discovered the documents existed.

“On October 30, 2002, the Court had hearings on motions filed by the defense requesting copies of information about an alleged Federal Bureau of Investigation report. On October 30, 2002, when questioned specifically by the Court regarding a Federal Bureau of Investigation report, Assistant Attorney General Don Valeska, said to the Court, ‘There ain’t no such thing as an FBI report.’

So Don Valeska, who is an Assistant Attorney General in Troy King’s office, lied to the court. In addition to the ideals I’ve quoted already, the Rules of Professional Conduct also have this to say:

A lawyer shall not knowingly make a false statement of material fact or law to a tribunal.

We don’t need rules to know lying is wrong, but it is worse when a prosecutor does it, because prosecutors hold peoples lives in their hands. Mr. Moore was on trial for capital murder. The case was entirely circumstantial. The evidence concealed by Don Valeska undercut some of the state’s arguments. By lying to cover it up, Don Valeska tried to conceal the truth. He wanted a conviction, justice be damned.

In response to this despicable conduct, the trial court dismissed the case. The Court of Criminal Appeals reversed the dismissal and remanded for a new trial. That is probably the correct result. Don Valeska needs to be punished for his actions. But dismissing the case harms many more people than Don Valeska.

My suggestion? Disbarment. This man ought not to be practicing law.

If that is too much, then at the least Don Valeska ought to lose his current job. His actions have humiliated our profession, his office and the state. Never mind the additional costs of a new trial. If Troy King had any integrity whatsoever, Don Valeska would no longer work for his office, never mind continuing to work in his current position as Chief of the Violent Crimes Division. http://alablag.wordpress.com/2006/08/01/a-minister-of-justice/

Despite the above cited newspaper report Daniel Wade Moore was tried a third time in April,2009,for the nurder of Karen Tipton.Valeska was removed from the case and Daniel,whose case I have been backing for the last couple of years,was acquitted on all counts. The whole trial was filled with surprises that we don't usually find in a third trial re-play.Lots of alleged newly discovered evidence and much prior testimony being retracted or revised. Most surprising of all were the jurors.They were out six days and kept sending for more and more of the exhibits.Were they hopelessly deadlocked? Not a bit of it. The vote was 6 Not Guilty(a lot of Daniel's jurors over the years have wanted to ballot innocent!) and 6 Don't Knows so the benevolent six spent six days educating their six fellows in the right way to approach the evidence! They never had an unkind word for each other and everybody wishes they could get together and do it again sometime. Daniel(now 35) waited less than a week before filing suit for multi-million dollars damages against the town of Decatur for false prosecution.(It cost him the final eleven years of his youth.0Valeska unfortunately was ruled to be covered by immunity by a Federal judge back in 2000 when Moore first tried to litigate his conviction in civil court. [However,the Supreme Court is now hearing a suit against two mid-Western D.A.'s who knowingly prosecuted an innocent man for murder and, should the D.A.'s lose, it is not impossible that Daniel---if he is willing to fight until he is forty-five years old---could yet turn the tables on Valeska. That was a great couple of days there all around.Two defendants whom I have been blogging for since I got on here--Daniel Moore and Paul House(House got an actual innocence finding) within three days! Nothing like that has happened to me in the nearly fifty years since I first launched into the campaign on behalf of Caryl Chessman(one of only three capital defendants in half a century whom I definitively lost). Here is the most quantatively informative site on the Moore case with lots of video interviews from all sides.Still,as my opening letter on this thread witnesses,the quality of the local newspaper reportage is extreemely variable and there are many glaring omissions and some deplorable misinterpretations of the forensic evidence.http://www.whnt.com/news/whnt-daniel-moore-trial-log,0,43822.story